H1B Travel Ban Rules – Can get Visa (Oct 2020 Lawsuit Stay Order)

Trump travel ban executive order - H1B employees of lawsuit members eligible - get letter from employer. H4, L2 Dependents can get visa if primary H1B, L1 in US.

Anil Gupta
  By Anil Gupta    Updated  19 Oct, 20


Update Oct 2020: The judge has allowed the issuance of H1B visa for companies who are part of this lawsuit.

You should check with your employer to know if they are a member of this litigation. Your employer will need to write it on the official letterhead and then you need to take it to your H1B visa interview.

The Visa officer will verify and if your employer is part of this litigation, you are considered eligible for getting an H1B visa and traveling to the USA during the travel ban period.

H1B Visa for Non Members (of Lawsuit)

You have to follow State Travel department guidelines:

  1. H1B/L1 can apply for a visa if you are still working for the same H1B/L1 employer, same job role, and position for whom you were working in the USA before your travel.
    1. If you filed an H1B transfer or an amendment after June 22, 2020, and now want to return to the US, then, you are not allowed until the ban is active.
  2. H1B/L1 technical specialist or senior manager and satisfy at least 2 of these (depends on consular officer discretion and rules are complex):
    1. If you can work and are working remotely from outside the USA, you are not eligible to travel. (tough for IT jobs to prove).
    2. You are a senior-level employee who is vital to the management and success of the overall business enterprise.
    3. Your salary exceeds the prevailing wage rate by at least 15 percent. (can be satisfied if you have a good salary).
    4. You have a doctorate or professional degree along with many years of relevant work experience. (probably an Einstein).
    5. If your H1B employer will face financial hardship, or cannot continue its business, or a delay to the employer’s ability to return to its pre-COVID-19 level of operations without your services. (quite difficult to prove!).    

US embassy is issuing H4, L2, and J2 visas if they are open or they have given an emergency appointment. The new visas issued during the travel ban period have the annotation as:

NIE UNDER P.P. ON RISK TO LABOR MARKET“.

See this sample H4 visa issued by US embassy in India on 31 July 2020:

USA h4 visa issued-with travel ban annotation
USA h4 visa issued-with travel ban annotation

Travel Ban

Ban Term: June 24, 2020 to Dec 31, 2020 mid-night 11:59 PM ET.

Trump signed the executive order to ban work visa holder entry to the United States on June 22, 2020.

J visa holders who are an intern, trainee, teacher, camp counselor, au pair, or summer work travel program are banned.

USA travel ban - no new visa form 221g till ban end
USA travel ban – no new visa form 221g till ban end

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Rules Snapshot

ApplicationTrump Executive Order Ban
Visa NOT stamped

H-1B, L-1, H-2B, J-1

H4, L2, J2,

H1B in US, H4 + US Citizen Kid,

L1 in US, L2 + US Citizen Kid
Currently outside the USA
Ban on the entry until Dec 31, 2020.

The Visa application will not be approved even if the US embassy reopens until the entry ban is active.

The embassy will issue form 221g to hold visa issuance until the ban is active.

US citizens can travel but the ban language is not clear about H4 + US citizen combination.
Primary in US, Dependent outside USState travel department clarified on July 16 that dependents of H1B, L1, and J1 can apply for H4, L2, and J2 visa if primary is currently in the US.
Visa stamped
H-1B, L-1, H-2B, J-1

H4, L2, J2


Currently outside the USA
You can enter the USA with a valid stamped visa.

Traveling outside the USA, you can return if you have a valid stamped visa.
am22tech.com
H-1B lottery
(OPT, F1 to H1B and other cases – 2020-21 season starting Oct 1, 2020)
Currently Outside USA
You cannot enter the US until the ban is active.
A visa stamp will not be issued even if the US embassy reopens.

The application will be kept in form 221g admin processing.

Currently inside the USA
Not affected if you filed as a change of status.

If you have applied in consular processing, you can file the H1B amendment with change-of-status after Oct 1.
H1B extension, transfer, amendment, change of status

L-1 Extension

H4 EAD, L2 EAD

F1 to H1B Lottery,
OPT to H1B,
STEM OPT to H1B
Currently inside the USA
People currently inside the US are safe.

USCIS will approve extension, transfer, amendment, or COS as usual.

Currently outside the USA
You can file the extension, transfer, amendment petition with USCIS but will not get visa approval from the US embassy to travel till the ban is active.

The embassy will issue form 221g until the ban is active.
i485 AOS, i485 EADi485 and EAD will be approved.
Green card Pending – Outside USACurrently inside the USA
Green cards will be approved.

Currently outside the USA
Green cards may not be approved until the order stays Active.

NVC may not schedule an interview appointment until the ban is active.
Green card Valid – Outside USAYou can enter the US with a valid Green card.

You can travel and return to the US.
I-130 Family Sponsor ApplicationI-130 will be approved.
i140, PERM, EB-1, EB-2, EB-3Not affected.
Diversity VisaCurrently outside the USA
Your visa will not be issued. You cannot enter the US until you have a stamped visa.

Currently inside the USA
You are safe

USCIS, US Embassy Rules

Travel.state department confirmed that a new visa will not be issued until Dec 31, 2020, for the visa types mentioned in Trump’s proclamation.

  • US Embassy will issue Form 221g: The US embassy in Singapore and India (All consulates including Hyderabad, Delhi, Mumbai, Chennai, etc.) have told that they will issue form 221g denials until the ban is active for any pending and new visa applications.
  • USCIS officially announced that the order will not affect people currently working in the US on H1B, L1, L2, or J1 visas. Extensions and renewals can be filed as usual with USCIS.

Exceptions

  • Employees of companies who are part of the H1B lawsuit.
  • Existing stamped H1B, J-1, L-1 visa holders are allowed to enter the US.
  • Dependent visa holders like H4, L2 are allowed to travel if their primary spouse is already in the US. Interestingly, H4 EAD and L2 EAD are not affected at all.
  • H1B extension, transfer, amendment, change of status for people who are already in the US will not be affected.
  • Jobs in Food Production (farm workers) using the H2B visa and supply chain.
  • Healthcare professions – Anybody working in a medical profession or a health care company and directly involved in treating COVID-19 patients. Example: A doctor or a nurse.

Effects on India EB2 Queue

The Employment-based visa bulletin moved the dates for EB-1, EB-2, and EB-3 faster than ever in Oct 2020 visa bulletin.

The chances are very good for a family-based green card spillover in Oct 2021 as well if the US embassies stay closed until the COVID-19 cases keep rising.

The family green cards will not be issued till Dec 2020 end and these may accumulate and spillover in Oct 2021 again into employment-based queues.

I have shared my estimates on EB2 Indian prediction page.

MigrationPolicy estimates that this work visa travel ban will affect at least 219,000 workers who will not be allowed to enter the US labor market even if their work petition has been approved legally by USCIS.

Family Green Card Applications

Trump has extended the April 22 immigration ban till Dec 31, 2020, which applies to

  • Parents, Siblings of US citizens
  • Spouses and minor children of permanent residents

I130 application can be approved but the next step of the green card will be delayed. NVC cannot schedule your Green card interview appointment.

If you are in the USA at the time of your I-130 approval, you can file i485 and your GC will be approved.

The US embassy visa officer will take into account this order while approving your GC application.

Green card holders currently outside the USA can travel and enter. GC holders who are currently in the USA are not affected including Spouses and children of US citizens.

FAQ

Will dropbox be allowed?

Dropbox should be allowed as it appears from the executive order language but you will be issued a form 221g until the ban is active.

Check your Dropbox eligibility.

How H1B COS be Filed after H1B Lottery Consular Approval without going out of the USA?

You can file the H1B amendment with a change of status as soon as Oct 1 if you have got the H1B lottery approval with consular processing.

H1B lottery approved with consular processing

Can i Use AVR (Automatic Visa Revalidation) from Canada/Mexico?

CBP officer at the Canadian border confirmed that the AVR process is not affected by Trump’s travel ban order.

Are i140, i485, PERM Affected?

i140 and PERM are not affected. You can file them normally and get approval too.

They are going to pause the approvals of the green card (immigrant visa) issuance by the US embassy.

The i485 AOS (adjustment of status) will continue to be approved as usual if you are in the US.

Can H4 visa be issued if H1B is already in the USA?

H4 visa can be issued by the US embassy if the primary H1B is already in the USA.

This will be based on the visa officer’s discretion though.

The executive order has given the authority to US embassy interviewing officers to use their own discretion in these kinds of cases.

Is H4 EAD banned?

H4 EAD has not been banned or revoked in Trump executive order.

L2 EAD can also work normally.

You can apply H4 EAD and L2 EAD normally while you are in the USA.

Are F-1 students, OPT, STEP OPT, TN, B1/B2, E-3, O-1 visa affected?

F-1 students, OPT, STEP OPT, TN, B1/B2, E-3, O-1 visa are not affected by Trump’s travel ban.

Can I use the Old Employer H1B visa stamp if its still valid?

You can use an old employer’s valid visa stamp to enter the US even if you have changed the employer after H1B transfer.

Will this immigration change impact for H1B lottery filling next year 2021 to 2022?

The executive order mentions that the order will be reviewed again in Dec 2020 and it can be extended.

The H1B lottery is run by USCIS though and it may not be stopped for 2021-22 season.




Author

Anil Gupta
  By Anil Gupta           

Recent discussion on forum

  1. priyanka_vaydande
    priyanka_vaydande

    Hello Anil, can u pls let me know if this ban is applicable for my case where the h1b was stamped and it got expired in Jan 2020.


  2. disquser
    disquser

    @Anil.Gupta

    Regarding the proposed h1 ban… do you think it will affect cap exempt candidates (140 approved) looking for new h1 (last h1 withdrawn, residing in india hence consular processing) employer with valid visa for next two years for last employer?

    Will they able to get h1 cp and travel on existing visa stamp valid for next two years?


  3. anil_am22
    anil_am22

    Hi @priyanka_vaydande

    As per current unverified information, the chances are high that you will be affected if you are currently outside USA and have no valid stamped visa in passport.

    Hi @disquser

    You might be allowed to travel if you have a valid stamped visa in passport.


  4. Devanshu_Anand
    Devanshu_Anand

    Valid stamped visa on passport and outside usa will not get affected by executive order and can enter to usa anytime… Please correct my understanding if wrong…


  5. aks
    aks

    Hi Anil,
    I am in US with valid H1B till September 2020 and working for Company A. I am planning to move to Company B (one among Infosys,TCS,CTS). Will this order impact my wish to change the employer?

    In addition, there will be limits on third party IT company hiring. So, people working in TCS, HCL, Infosys and similar companies should be ready to face it.


  6. muralidhar
    muralidhar

    Hi Anil,
    I am in US with h1, my wife is in india with valid Stamping till Jan 21, can she travel back.
    Thanks
    Murali


  7. pw2980
    pw2980

    Hi Anil, you haven’t talked about this section of the EO:
    (b) The Secretary of Labor shall, in consultation with the Secretary of Homeland Security, as soon as practicable, and consistent with applicable law, consider promulgating regulations or take other appropriate action to ensure that the presence in the United States of aliens who have been admitted or otherwise provided a benefit, or who are seeking admission or a benefit, pursuant to an EB-2 or EB-3 immigrant visa or an H-1B nonimmigrant visa does not disadvantage United States workers in violation of section 212(a)(5)(A) or (n)(1) of the INA (8 U.S.C. 1182(a)(5)(A) or (n)(1)). The Secretary of Labor shall also undertake, as appropriate, investigations pursuant to section 212(n)(2)(G)(i) of the INA (8 U.S.C. 1182(n)(2)(G)(i)).

    Do you think it will make Eb-2, Eb-3 process more difficult? more denials?
    Thank you


  8. anil_am22
    anil_am22

    Order does not affect H1 transfers as already mentioned in my article. The restrictions are supposed to be introduced for H1B consulting companies as a whole. That’s why I wrote Indian IT companies may be affected.

    H1B LCA won’t be easily approved going forward as Executive order has asked DOL to tighten the norms.

    Hi @pw2980

    I have discussed it in DHS future plans in my article.


  9. askumar7789
    askumar7789

    Hi @Anil.Gupta - Currently on F1 and selected in H1B lottery, applied for Consular processing. Is there any impact to my application? I understand if I travel between now and Dec 31 then I will not get the visa and this cant reenter but the application itself would not be impacted correct? TIA


  10. shobhit_mahajan
    shobhit_mahajan

    Hi, you said H4 will not impact if H1B is in USA.

    Can you comment on my situation, I am in USA with H1B visa but My wife is in H4 outside of USA and does not has a valid visa stamp(done with her bio metric but on the personal interview day the US consulates got close due to pandemic and still not open ) my 4 years daughter is a US citizen and she is also with my wife in India. Whenever the US consulate in India will open, my wife will allow for personal interview before December 31, 2020.


  11. chopchop2015
    chopchop2015

    Similar question to the above.

    I am currently on OPT and was selected in the H1B lottery this year. I chose Consular Processing in order to delay the start date of my H1B until 2021 (as I have a STEM extension for 1.5 more years).

    In light of the new EO, is there a way to change my Consular Processing application to Change of Status? I no longer want to take the risk in leaving the country

    Thank you!


  12. askumar7789
    askumar7789

    Hey,

    Since you already are on STEM OPT and have further validity wondering why you are wanting to change from consular processing to change of status? I am in the same boat as you can see from above so wondering?

    @Anil.Gupta says if you are in the USA and applied in Consular processing then you are out of luck. Not sure what that means. Hopefully, he will respond when he sees this message.


  13. Sonammittal
    Sonammittal

    Hello Anil sir,
    According to new Trump’s statement what will be the effect on green card sponsorship as my interview has been done in jan 2020… only some joint sponsor financial statements has to be submitted… I am just waiting for reopening drop off location…


  14. ankit
    ankit

    This is my case, but i have read 1 article[H-1B visas: Why US President Donald Trump's visa move will likely have a limited impact on India - The Financial Express] which says “Individuals seeking entry 1st time in US are affected”.
    Hope this is just language, it dosn’t mean anyone having stamped valid visa till next year but seeking entry 1st time is affected?


  15. Ram001
    Ram001

    My H1B Cap exempt petition was approved on May 19 2020. I was in Denver in 2018 in H1B and my extension was denied. My employer filed new cap exempt petition from india in 2019 for the same location. For Question 2 under part 2 in my I-129 petition, the check box was checked for “New Employment” as it is a new cap exempt petition.
    Please advise, if I’m eligible to get Visa stamp before 12/31/2020 as per the new update from trump.


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